Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Lincoln County Cause No.
12L6-CC00164 Honorable David H. Ash
Colleen Dolan, Judge
Chrostowski and WJC Trucking, LLC ("Appellants")
appeal the motion court's grant of Certain Underwriters
at Lloyd's of London's ("Respondent")
motion for summary judgment finding there was no coverage
under the Liability Policy (the "Policy") issued to
Appellants by Respondent. Appellants argue the motion court erred
by finding the written long term lease agreement between
Appellants and a motor carrier, USXL Worldwide
("USXL"), was not in effect at the time of Mr.
Chrostowski's accident because it had been mutually
terminated by the actions of Mr. Chrostowski and USXL. We
Factual and Procedural Background
September 16, 2011, while driving his semi-truck home without
an attached trailer, Mr. Chrostowski crashed into a used car
dealership owned by Fruendly Auto Source, Inc.
("Plaintiff") causing damage to fourteen used cars
of Plaintiff. Plaintiff filed a petition against
Appellants for damages. Mr. Chrostowski submitted an
insurance claim to Respondent, which was denied for failure
to meet a condition for coverage. The policy in question was
referred to by the parties as a "Bobtail" liability
policy (the "Policy"). This Policy states that
Respondent is not responsible for providing coverage under
the Policy unless Mr. Chrostowski is "operating under a
presently effective, written long term lease with a motor
carrier providing primary liability coverage." The
Policy goes on to state that "[i]f no written long term
lease exists and is effective, no coverage applies."
March 1, 2010, Appellants entered into a written "Model
Lease Agreement" (the "Lease Agreement") with
USXL which provided that WJC Trucking would haul freight for
USXL in return for compensation. The Lease Agreement further
stated USXL would provide "all required insurance
covering personal injury and property damage, and cargo loss
and damage, as is required of a motor carrier engaged in
interstate commerce by federal law[.]" Upon signing the
Lease Agreement, USXL gave Mr. Chrostowski equipment
including a qualcomm for on-the- road communication with
dispatch concerning load assignments, a load lock for safely
securing loads, state and federal permits, license plates, a
cab-card showing he had auto liability insurance, and a
pre-pass/EZ Pass Device.
Lease Agreement provided that upon lease cancellation, the
equipment provided by USXL had to be returned. Prior to
September 16, 2011, Mr. Chrostowski informed USXL that he
would be leaving and terminating the Lease Agreement. In
anticipation of this event, Mr. Chrostowski and USXL arranged
for him to bring his truck in and for USXL mechanics to
remove the qualcomm device. On September 16, 2011, Mr.
Chrostowski drove to the USXL truck yard located in St.
Charles, Missouri, so that his qualcomm could be removed from
his semi-truck. While it was being removed, Mr. Chrostowski
said goodbye to the USXL employees and told USXL he was
quitting. Following this device's removal, Mr.
Chrostowski delivered his final load for USXL to Illinois. On
his return trip to his home in Excello, Missouri, Mr.
Chrostowski again stopped at the USXL yard in St. Charles and
dropped off the trailer, final paperwork, and the remaining
equipment in his possession belonging to USXL (license
plates, permits, and cab cards) at approximately 9:00 p.m.
When Mr. Chrostowski left the USXL yard he was driving his
semi-truck without an attached trailer, or
"bobtailing." It was on his way home that Mr.
Chrostowski had the accident. After taking a drink of coffee,
he began choking and blacked out, leaving the road and
crashing into the Plaintiff's used car lot at
approximately 10:20 p.m.
Mr. Chrostowski called Commercial Truck Claims Management
("CTCM"), which was designated under the Policy to
act as an adjuster in the event of an accident, to make a
claim on his Policy. In that phone call, Mr. Chrostowski
stated he had delivered his load for the evening and when he
returned to the USXL yard he "broke [his] lease at about
8:45 at night." In a second recorded phone call with
CTCM, Mr. Chrostowski denied that he was taking a weekend or
a week off stating, "No, actually I was done. I was
coming home. My truck was going in the shop to get it
paint[ed] on Monday…and I was going to go lease one
with another company." In a sworn statement, given on
June 28, 2012, Mr. Chrostowski stated that "I just was
going to lease a truck out of somewhere else, and I came in
at night and pulled my plates. And on the night of the
16th, [I] pulled my plates and put my plates and
my permit both and the rest of their paperwork in a
Ormsby, USXL's designated representative, testified that
contracts between USXL and truck-drivers are more commonly
terminated without written notice. He stated when there is no
written notice, USXL and the contractor believe a contract is
terminated when a contractor returns all of their equipment.
This is because a truck driver is no longer authorized to
haul a load for USXL anywhere without their license plates.
He testified: "It's illegal to drive without those
things and be leased to anybody…once we have all those
things, they're not legally able to drive for us. And if
they're not legally able to drive, then we don't have
a lease with them." Mr. Ormsby further stated that USXL
considered the lease with Appellants to be terminated at
approximately 9:00 p.m., on September 16, 2011, when Mr.
Chrostowski turned in USXL's plates and cab card.
denied the claim on September 23, 2011, for failure to meet a
condition for coverage-namely because Mr. Chrostowski was not
operating under a presently effective "long term lease
with a motor carrier providing primary liability
coverage" at the time of his accident. Plaintiff filed
its petition against Appellants on December 7, 2012, and
Appellants filed a third-party petition against Respondent on
May 10, 2013, to determine whether there was coverage for the
accident under the Policy. Upon Respondent's motion, this
third-party petition was severed from Plaintiff's claim
against Appellants. Appellants and Respondent then filed
cross-motions for summary judgment to determine coverage. On
July 16, 2015, the motion court denied Appellants' motion
for summary judgment and granted Respondent's, finding
the lease was not effective between Appellants and USXL at
the time of the accident because the parties' conduct
made it impossible for Appellants to legally drive for USXL.
In its judgment, the motion court found that "while it
may be argued that the lease exists because it was not
terminated in writing, it cannot be argued that it was
effective because by their mutual actions the parties made it
impossible for [Mr. Chrostowski] to legally drive for
appealed the motion court's decision to this Court on
August 19, 2015, and we dismissed finding that we did not
have jurisdiction because there was no final, appealable
judgment. On June 17, 2016, the court determined that the
summary judgment only applied to the third-party claim and
there was no just reason for delay in granting that order and
judgment in accordance with Rule 74.01(b). Appellants filed
a second notice of appeal on July 19, 2016, which was also
denied because this Court questioned whether certification
was proper, since the claim for insurance coverage would be
moot if Plaintiff lost its claim against Appellants. On
December 16, 2016, Plaintiff obtained a judgment in its favor
against Appellants. This appeal follows.
Standard of Review
court's decision to grant summary judgment is an issue of
law, which this Court reviews de novo; we will
affirm such a decision if it is proper under any legal theory
supported by the record. Burns v. Smith, 303 S.W.3d
505, 509 (Mo. banc 2010). Summary judgment is proper when a
movant demonstrates the right to judgment based on material
facts for which there is no genuine dispute. Brentwood
Glass Co. v. Pal's Glass Serv., 499 S.W.3d 296, 300
(Mo. banc 2016); see also Rule 74.04(c)(6).
Appellate courts view evidence in the record "in the
light most favorable to the party against whom judgment was
entered" affording them all reasonable inferences.
Brentwood, 499 S.W.3d at 300. As ...